judgment is affirmed as to defendant Mrs. L. Į say, 115 Mo. 1, 13, 21 S. W. 907, 37 Am. St. D. Pool, and reversed as to defendant L. D. Rep. 374, are cited with approval in Taylor Pool. v. Pullen, 152 Mo. 434, 439, 53 S. W. 1086, supra. STURGIS, J., concurs. ROBERTSON, P. J., dissents in a separate opinion, and asks that this cause be certified to the Supreme Court, for the reason that he deems the foregoing opinion contrary to previous decisions of the Supreme Court; and it is so ordered. ROBERTSON, P. J. (dissenting). In the result of the majority opinion, except as to the holding that defendant L. D. Pool is not liable, I concur. The conclusion reached in that opinion as to his exemption is not, I think, justified by the decisions of the Supreme Court of this state. The general rule is recognized by the majority that in this state the husband is liable for the torts of his wife, but he is absolved in this case, as it is stated, because the wife, in committing the wrong for which he is sought to be held, at the same time outraged and damaged him and violated a higher duty to him than she owed the plaintiff, and that, therefore, to apply the rule would shock the sense of justice ostensibly to defendant L. D. Pool. This postulate, I think, ignores the justice due the plaintiff. In discussing the common-law liability of the husband for the torts of his wife, Judge Gantt, in Taylor v. Pullen, 152 Mo. 434, 439, 53 S. W. 1086, states that: "So far no writer or court has as yet furnished satisfactorily all the reasons which may have influenced the adoption of the rule at common law, and, until they are produced, certainly the courts cannot declare that all the reasons have ceased, and thus abolish the rule by judicial decision." The opinion in Nichols v. Nichols, 147 Mo. 387, 408, 48 S. W. 947, discusses the effect of the Married Women's Act (now sections 8304, 8308, 8309, and 8310, R. S. 1909), and applies the principle that the expression in said section 8310 that the husband shall be exempt from all liabilities incurred by the wife before their marriage (which, as I understand, relieved the husband from some liabilities existing at common law) is in effect the exclusion from said act of any other exemption from liabilities which existed at common law. Further, in that opinion, in discussing the common-law reason for holding the husband accountable for the wife's torts, it is said that because under that law the husband absorbed the wife's property was not the chief reason, though that may have been sufficient, but a broader one existed, which was that the husband possessed the power of control, and therefore owed a corresponding duty to society for the conduct and actions of his wife, that this basis for his liability was not removed by legislative interference, and that so long as that reason remains, whether or not sufficient, it is for the Legislature, and not the courts, to change the rule. The Supreme Court in the Taylor Case, refused to ingraft any exception onto the rule that was not shown to be such as was known at common law, yet the majority opinion in the case under consideration entertains an exception on the theory, as I understand it, that no case has been presented where liability was fixed on similar facts. However, it may be suggested that in many cases, not necessary to collate here, where the husband has had to respond in damages for the torts of the wife, he has suffered pecuniary loss by reason of her acts in addition to the damages he was called upon to liquidate. Under the rule announced in the majority opinion, as I read it, if the wife in committing a tort also damages her husband, he is, by reason thereof, exempted from liability conformable to the common law. But, if the exemption recognized by the majority opinion should be said to be based on the assumption that the wife in committing a tort of the character here involved violates the marital contract, the reason for the common-law rule announced in the Nichols Case, supra, based on his power to control and his duty to exercise such power, should not be overlooked. Must the plaintiff's marital happiness be surrendered, her home ruined, and the lives of her children blasted without recompense by reason of acts of the defendant's wife, and the husband be exempted from the general rule of the common law in force in this state because in the commission of that wrong on plaintiff the husband of the guilty wife also suffered a wrong, but which might have been prevented by him, or, as the record discloses, which he has condoned? The defendant husband did not admit the guilt of his wife and ask for the mercy the majority opinion gratuitously bestows upon him at the expense of the plaintiff and her children. A reading of the English cases cited in the majority opinion, to the proposition that the husband was not liable for necessaries furnished his wife while she was living away from him, discloses that they are based on the idea of agency. Other cases may be found where such liability is denied on the theory that she has forfeited her right to support, of which the third party had notice, and for acts which the husband had not condoned. It is evident to me that the exception made by the majority opinion is now for the first time ingrafted upon the rule that holds the husband liable for the torts of the wife, which it is held in the Taylor Case, supra, should not be done, since it did not exist at common law. One ground for the assertion that this exception did not exist at common law is that the reason for it did not then exist. The husband then taking all of the sponded for all of her torts. However, be- 6. TRIAL_(§ 140*)-QUESTIONS FOR COURT OR cause this situation no longer exists under our statute furnishes no reason, I think, for the exception made by the majority of this tiff to establish his case, and he attempted to Where the burden of proof was on plaindo so by his own oral evidence, and his reputation was impeached, defendant was entitled to have his credibility passed on by a jury, and hence the court had no jurisdiction to direct a verdict. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig 8 140.*] 7. TRIAL (§ 139*)-QUESTIONS FOR COURT or JURY. and uncertain, such as the value of property, the evidence to establish the same is advisory only, and must be submitted to a jury. Where a fact to be established is relative [Ed. Note.-For other cases, see Trial, Cent. Dig. § 332, 333, 338-341, 365; Dec. Dig. § FEHRENBACH WINE & LIQUOR CO. v 139.*] (No. 1197.) (Springfield Court of Appeals. Missouri. June 2, 1914.) 1. INDIANS (§ 35*)-INDIAN RESERVATIONSINTOXICATING LIQUORS-IMPORTATION INTO INDIAN COUNTRY-SEizure. Rev. St. U. S. § 2140, authorizing federal officers to seize and destroy ardent spirits found in the Indian country, confines the authority of such officers to acts performed in the Indian country, and does not authorize them to seize or destroy liquors in a state, however near it may be to the prohibited line of the Indian country, and though it was intended that the liquor should later be transported into such country. [Ed. Note.-For other cases, see Indians Cent. Dig. §§ 61, 62; Dec. Dig. § 35.*] 2. CARRIERS (§ 92*)-Loss OF GOODS-ILLEGAL SEIZURE BY OFFICER-DEFENSES. Where liquor in the custody of a carrier was illegally seized and destroyed by federal officers, it was no defense to the carrier's lia bility for the loss thereof that it acted in good faith in surrendering the liquor, or that the liquor may have been seized by force. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. § 92.*] 3. CARRIERS (§ 92*)—Loss OF GOODS-CARBIER'S LIABILITY. A carrier was liable as an insurer for loss of liquors illegally seized by federal officers, on the ground that it was intended to transport them into the Indian country. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. § 92.*] 4. CARRIERS (§ 92*)-Loss OF FREIGHT-SEIZURE WITHOUT LEGAL PROCESS-CARRIER'S LIABILITY. Where an officer without proper legal process seized and destroyed liquors in possession of a carrier, the officer was a mere trespasser, and the carrier was liable for his act. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 343, 364-366; Dec. Dig. § 92.*] 5. JURY (§ 14*)-RIGHT TO JURY TRIAL-DISCHARGE OF JURY. Where plaintiff sued a carrier for loss of goods, the action was one to recover money only, in which defendant was guaranteed a right to trial by jury, by Const. art. 2, § 28, and hence it was error for the court to discharge the jury without directing a verdict, and, after considering the evidence, to itself render judgment for plaintiff. [Ed. Note.-For other cases, see Jury, Cent. Dig. § 40-60, 66-83; Dec. Dig. § 14.*] 8. CARRIERS (§ 135*)-Loss oF GOODS-MEASURE OF Damages. goods, on which freight has not been paid, the In an action against a carrier for loss of consignee's measure of damages is the value of the goods at destination, less the freight. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 6031⁄2-6041⁄2; Dec. Dig. § 135.*] 9. EVIDENCE (§ 35*)-JUDICIAL NOTICE. The Missouri courts will not take judicial notice of the fact that all of Kansas is prohibition territory, and that intoxicating liquors in that state have no market value. Where, in an action against a carrier for loss of whisky, the only evidence of damage was the value of the whisky at the point of shipment, plaintiff could not recover more than nominal damages. [Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 557-559, 599-602, 6031⁄2-6041⁄2; Dec. Dig. § 135.*] D. E. Blair, Judge.. Action by the Fehrenbach Wine & Liquor Company against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Thomas R. Morrow, John H. Lathrop, and Geo. J. Mersereau, all of Kansas City, and Henry L. Bright, of Carthage, for appellant. Wolfe & Burnett, of Joplin, for respondent. STURGIS, J. The plaintiff, a wholesale liquor dealer of Joplin, Mo., sues defendant, a common carrier, for the loss or conversion the court, in ruling that the land in the original town of Muskogee, Okl., is not part of the Indian country,' said: "It is conceded by counsel for defendants, and is settled by repeated decisions of the Supreme Court, that the power of the officers of the Interior Department, and of the officers of the army, to cause such searches and seizures is limited, by the terms and the true construction of section 20 of the act of 1834, and of to searches and seizures in the Indian country, sections 2139 and 2140 of the Revised Statutes, and that they are without authority to cause such searches and seizures outside the Indian country. The result is that the dewhich they made, and those they threaten to fendants had no authority to make the search make, unless the land in the city of Muskogee on which the plaintiff's drug store was located was in the Indian country." ** * * In Bates v. Clark, 95 U. S. 204, 24 L. Ed. 471, where the seizure of liquors at a place not in the Indian country was sought to be justified under this act of Congress, the court ruled: having the whisky for sale at the place where "The plaintiffs belows violated no law in it was seized; and the twentieth section of the act of 1834, as amended by the act of 1864, conferred no authority whatever on the defendants to seize the property." of several shipments of whisky received by defendant at Joplin for transportation to, and delivery at, Caney, Kan. The defendant admits the receipt of the liquors for that purpose, and its failure to deliver same, and seeks to justify such failure by alleging and proving a safe transportation of the liquors to Caney, Kan., and its seizure there while being held for delivery at its freighthouse by a special officer of the United States, acting under the power and authority conferred on him by section 2140 of the Revised Statutes of the United States, and who took the same from defendant and then and there confiscated and destroyed the same. The United States statute referred to provides that if any such officer has reason to suspect or is informed that any person is about to or has introduced any spirituous liquors into the Indian country in violation of law, he may search the instrumentalities of transportation and places of deposit of such person, and if any such liquor shall be found, he may seize the same, with the means of transportation and other goods of the offender, and proceed against same by libel in the proper court, and that it shall be his further duty to take and destroy any ardent spirits found in the Indian country, except such as may be introduced therein by the War Department. [2] Nor can defendant justify its action so The evidence shows that the town of Caney as to relieve itself of liability in surrendering is in the state of Kansas, but near the border the liquors in question to the federal officer between that state and the part of Oklahoma on the ground that it did so in good faith, bewhich is defined as Indian country and pro-lieving that such officer had a right to seize tected from intoxicants by said act of Congress. There is abundant evidence in the record to show that the liquor in controversy was intended to be taken across the line into the Indian country in violation of law, and that the consignees would have so used it had it not been seized and destroyed before its delivery to them. The evidence shows that a duly commissioned officer of the United States exhibited his commission as such officer to defendant's agent having charge of its freighthouse, and this liquor at Caney, Kan., and thereupon took possession of the liquor in question, removed it from such freighthouse, wrote the word "confiscated" on the freight bills, and thereupon destroyed the liquor. The defendant's agent neither acquiesced in nor resisted the taking of the liquor in the manner above stated. See, also, Clairmont v. United States, 225 U. S. 551, 32 Sup. Ct. 787, 56 L. Ed. 1201. and take the same against its will. In fact defendant would not have been relieved of liability had the liquors in question been taken from it by force. In the case last quoted from, the Supreme Court of the United States, in speaking of this point, said: "But the objection fatal to all this class of defenses is that in that locality they were utand their honest belief that they had is no deterly without any authority in the premises; fense in their case more than in any other, where a party, mistaking his rights, commits a trespass by forcibly seizing and taking away another man's property. There was here no process from a competent court, nor any order from any source having authority, and there is therefore no defense." [3, 4] The defendant's liability for loss or destruction of this freight while in its possession for transportation and delivery is not grounded on negligence or want of due care. [1] The defendant must fail in this defense, The defendant, subject to certain well-denotwithstanding these facts, for the reason fined exceptions not involved here, was an that any and all authority conferred by sec- insurer against loss of the liquors in question 2140 of the United States statutes is con- tion. 1 Hutchinson on Carriers (3d Ed.) § fined to acts performed in the Indian coun- 265; 6 Cyc. 376; Davis v. Wabash Railroad, try. The act of Congress in question does 89 Mo. 340, 349, 1 S. W. 327. While losses not authorize a federal officer to seize and de- from the acts of public authorities, inclusive stroy spirituous liquors in the state of Kan- of a valid exercise of the police powers sas, however near it may be to the prohibit-against intoxicating liquors introduced for ed line of the Indian country. The officer's use or sale in violation of law, is one of the jurisdiction in this respect is territorial and well-recognized exceptions to holding a carconfined to the Indian country. Such is the rier absolutely liable for goods intrusted to ruling of the United States Circuit Court of it for shipment, yet it is equally well recogAppeals for this circuit in the case of Evans nized that, in order to be a protection, the the proper legal authority to do so at the 514, 147 S. W. 192; Dyer v. Tyrrell, 142 Mo. time and place of seizure. "If, therefore, he seize them without the proper legal process, he will be a mere trespasser, and the carrier will be liable for his act." 1 Hutchinson on Carriers (3d Ed.) § 325; Nickey v. Railroad, 35 Mo. App. 79; Bennett v American Express Co., 83 Me. 236, 22 Atl. 159, 13 L. R. A. 33, 23 Am St. Rep. 774; Heymann v. Southern R. Co., 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, 7 Ann. Cas. 1130. App. 467, 127 S. W. 114; Gordon v. Burris, 141 Mo. 602, 43 S. W 642; McCrosky v. Murray, 142 Mo. App. 133, 125 S. W. 226; Link v. Jackson, 158 Mo. App. 63, 91, 139 S. W. 588. Even if we apply the rule that, in order to compel a submission to the jury of any issue where the evidence is all one way, the witnesses giving the evidence in support thereof [5] This case must, however, be reversed must be interested, or there must be someand remanded for these reasons: The case thing affecting the credibility of the witnesswas tried to a jury, and after all the evidence es, or some circumstance of suspicion or was in, the court, over the objections and ex- doubt connected with the evidence warrantceptions of the defendant, made the following the court in permitting the jury to dising order: credit or disbelieve the evidence, yet, in this "Trial by jury begun, and at the conclusion case the evidence in support of plaintiff's of all the evidence the jury is discharged by the court on the ground that no question of fact is involved in the case, and the cause is submitted to the court for further proceedings.' The court, after discharging the jury, took the case under advisement, and several days later entered a judgment stating, among other things, that: "The trial of this cause is resumed by the court. After hearing the remainder of the evidence, and being fully advised in the premises, the court finds that the defendant is justly indebted to plaintiff," etc. This is an action for the recovery of money only, and in such cases the right of trial by jury is guaranteed by our Constitution (article 2, § 28), and is especially provided for by statute (section 1968, R. S. 1909). Kansas City v. Smith, 238 Mo. 323, 141 S. W. 1103; Frowein v. Poage, 231 Mo. 82, 132 S. W. 241. We do not deny the right of the court in a proper case to direct a verdict for either party to a cause. When the court does this, however, it is still the verdict of the jury, and is quite a different procedure than discharging the jury, taking the case under advisement, and later rendering a judgment by the court. case came from himself, an interested witness, whose reputation was impeached by proof of his conviction of a criminal offense. In such cases all the authorities agree that the court cannot direct a verdict. Bank v. Hainline, 67 Mo. App. 483; Jenks v. Glenn, 86 Mo. App. 329; Pritchard v. Hooker & Nixdorf, 114 Mo. App. 605, 609, 90 S. W. 415; First National Bank v. Bennett, 114 Mo. App. 691, 695, 90 S. W. 417; Howard v. Hurst, 156 Mo. App. 205, 211, 137 S. W. 1; May v. Crawford, 150 Mo. 504, 51 S. W. 693. [7] It is also the law that where the fact to be established is relative and uncertain, such as value, rather than fixed and definite, then the evidence to establish same is advisory only, and the jury must be permitted to pass on the same. Pritchard v. Hooker & Nixdorf, 114 Mo. App. 605, 610, 90 S. W. 415. [8] The evidence adduced as to the amount of damages to be recovered related wholly to the value of the whisky at Joplin, the point of shipment. The law is well settled that the measure of damages against a carrier for loss or damage to goods shipped or failure to deliver same is the market value at the point of destination. Railroad v. Traube, 59 Mo. 355; Wilson v. Railroad, 129 Mo. App. 347, 108 S. W. 612; Medicine Co. v. Railroad, 126 Mo. App. 455, 104 S. W. 478; Warehouse Co. v. Railroad, 124 Mo. App. 545, 102 S. W. 11; Blackmer v. Railroad, 101 Mo. App. 557, 73 S. W. 913. Under these authorities it is also held that if the freight has not been prepaid, then the amount due the carrier should be deducted, but we know of no reason for adding the same where it is prepaid. This rule as to the measure of damages has its exceptions, one of which arises where there is no market value at the destination; but there is no evidence on this point in the present record. [6] It is not necessary, however, for us to decide that, in a case where the court should properly direct a verdict for plaintiff, it is a fatal error for the court to first discharge the jury and then render such a judgment as would be proper on the directed and returned verdict. In the present case the amount which plaintiff could recover depended on the value of the liquors lost and destroyed, and this presented a question of fact for the jury. It is true that defendant of fered no evidence on this point, and that plaintiff's evidence as to the value was not contradicted, yet the answer puts this in issue, and the evidence was oral and by an interested witness. It is the established law [9-11] We are asked to take judicial noin this state that, as the burden of proof is tice that all of Kansas is prohibition terrion the plaintiff to establish his case, where tory, and that, as the sale of liquors is prothe evidence adduced is all oral, and no evi-hibited there, it can have no market value dence is introduced to the contrary, yet the there. Courts of one state, however, do not weight of the evidence and the credibility of the witnesses is for the jury, and the court has no right or power to direct a verdict. Dalton v. Poplar Bluff, 173 Mo. 39, 47, 72 S. take judicial knowledge of the laws of a sister state, and as Kansas was never under common-law jurisdiction, the presumption is that her laws are the same as ours. Flato v. Co., 43 Mo. App. 566; Hardware & Mfg. Co. v. Lang, 54 Mo. App. 147; Witascheck v. Glass, 46 Mo. App. 209. [12] Moreover, we think it will be found that whisky has a legitimate use and sale everywhere for medicinal and, perhaps, other purposes, and we cannot conclude that it had no market or actual value at destination. It follows that, on the present state of the record, the plaintiff's recovery could not have been for more than nominal damages. Rogan v. Railroad, 51 Mo. App. 665, 672; Warehouse Co. v. Railroad, 124 Mo. App. 545, 567, 102 S. W. 11. The case will therefore be reversed and remanded. or real title in another, or when the title is in one person and the ownership in another; the trust being the beneficial title or ownership of property of which the legal title is in another. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 8, pp. 7116-7124, 7822.] 6. TRUSTS (8_72*)-RESULTING TRUST-PURCHASE OF REAL PROPERTY PAYMENT OF PRICE TITLE IN THE NAME OF ANOTHER. When one person pays the purchase money for land, and the title is conveyed to a stranger, a trust prima facie results in favor of the that the person furnishing the money directs party who pays the money, nor does the fact or consents or agrees that the title be placed in such other party, to be held by him in trust, make the trust an express rather than a resulting one. ROBERTSON, P. J., concurs in the result. Dig. §§ 102, 103; Dec. Dig. § 72.*] FARRINGTON, J., concurs. [Ed. Note.-For other cases, see Trusts, Cent. LISHMENT. The establishment of trusts and the enforcement of trust relations is an ancient ground of equity jurisprudence. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 554, 565, 566; Dec. Dig. § 359.*1 2. JURY (§ 14*)-RIGHT TO JURY TRIAL-ENFORCEMENT OF TRUST. A suit to establish and enforce a resulting trust as to the proceeds of a sale of land alleged to have been purchased by defendant's husband, since deceased, with money contributed by complainants, was a suit in equity, though the judgment prayed was for money only, and hence defendants were not entitled to a jury trial. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 40-60, 66-83; Dec. Dig. § 14.*] 3. EQUITY (§ 91*)-PARTIES—Joinder. In a suit in equity, every person having any material interest, whether legal or beneficial, in the subject-matter is properly made a party, regardless whether the interests of the parties be joint or several, nor is it material whether they are joined as co-complainants or brought in as defendants; the object being to settle the whole controversy and secure a decree binding on all the parties in interest. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 248-251; Dec. Dig. § 91.*] 4. TRUSTS (§ 366*) — RESULTING TRUST PARTIES. to their Where several persons paid money plaintiff's husband, since deceased, as agent or representative, with which he purchased land to be used as a co-operative fruit farm, and, he having died after purchasing the property, the scheme collapsed and the land was sold under foreciosure, which sale resulted in a surplus, all of the contributors were proper parties to a suit against decedent's widow to enforce a resulting trust as to such surplus, and were not bound to institute separate suits to enforce the rights of each. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 88 574-583; Dec. Dig. § 366.*] 5. TRUSTS (§ 1*)-WHAT CONSTITUTES-DEF INITION. 7. TRUSTS (§ 72*) — “RESULTING TRUst” STATUTES. A resulting trust arises as a matter of law from the fact that the consideration for land is paid by one person and the title taken in the name of another; the trust arising whether in accordance with or against the intentions of the parties. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 102, 103; Dec. Dig. § 72.* For other definitions, see Words and Phrases, vol. 7, pp. 6188-6192.] 8. TRUSTS (§ 72*)-RESULTING TRUST-ESTABLISHMENT. A resulting trust never arises in the hands of one who is the real owner of the property, but is impressed on the property by the very act and at the time of the vesting of the title, and hence cannot arise by the act or agreement of one party who both pays the consideration and takes the title in himself, nor by act or agreement subsequent to the convey ance. Dig. 88 102, 103; Dec. Dig. § 72.*] 9. TRUSTS (§ 75*)—RESULTING TRUST-BOB- That credit is given or money borrowed and subsequently paid is sufficient to raise a resulting trust where property is purchased with funds furnished by one person and the title taken in the name of a stranger. Dig. § 107; Dec. Dig. § 75.*] 10. TRUSTS (§_62*)- RESULTING TRUST - A resulting trust which may be established by parol is always a passive or dry trust, as the mere holding of the title for the benefit of another does not impose on the trustee any duty or responsibility as to the management, control, or disposition of the property, except to convey the legal title to the cestui que trust or at his direction. [Ed. Note. For other cases, see Trusts, Cent. Dig. § 88; Dec. Dig. § 62.* For other definitions, see Words and Phrases, vol. 6, pp. 5227, 5228.] A trust in real estate exists whenever the legal title is in one person and the equitable |